Tuesday, March 26, 2013

What Does Loving v Virginia Tell Us About Marriage Regulation

Given that the Supreme Court is currently hearing arguments about the legality of same-sex marriage and that a 1967 SCOTUS ruling in Loving v Virginia is at the heart of the argument being presented by proponents, I thought it might be interesting to look into what that ruling actually said.

I've previously discussed my opinions on same sex marriage when I took a look at the history of government marriage regulation in the United States. Many might be surprised to learn that it wasn't until after the Civil War that most states began regulating marriage. There were some marriage licenses issued prior to that by some states and colonies, but they were not required. In truth, back then a couple could simply declare themselves married and it was so.

As is the case with minimum wage laws, the proliferation of marriage laws was driven by Democrats who wanted to keep now free slaves from marrying white women. Most marriage laws centered around preventing whites from marrying blacks. There were no such restrictions when it came to whites marrying Asians or Hispanics.

Thus emerged the case of Loving v Virginia. The Loving couple, the name being quite appropriate, had been arrested when they returned to Virginia from having been married out of state. At the time, 16 states banned interracial marriage and those states passed laws on the book making it a crime to get married out of state and return to the state to live as husband and wife.

Virginia argued that the law didn't violate the equal protection provisions of the 14th Amendment because both the white and black spouse are punished exactly the same for the crime of interracial marriage. SCOTUS disagreed, but the manner in which they disagreed is what some proponents of gay marriage seem to have missed.

This is what they wrote:

"The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."

I have expressed my dismay at the Equal Protection argument for same-sex marriage before. From my reading of the 14th amendment, no American can be denied a right or privilege of any other American. In the case of marriage, no one is being denied the right to marry, only the right to marry someone of the same sex. Both you and I are treated exactly the same under this regulation. Marriage laws make no mention of love or sexual orientation.

Based on what the Supreme Court wrote in its opinion, one has to wonder if Virginia's interracial marriage law had prevented all peoples of various races from marrying outside their race, instead of just other races marrying whites, if SCOTUS would have reached the same conclusion. I would reiterate what they wrote, "The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."

As a traditional Republican, I proudly support interracial marriage and know SCOTUS came to the just conclusion that day in 1967, using an amendment ratified nearly 100 years prior, in 1868. But, I don't believe that decision can be extrapolated to same-sex marriage. The entire purpose of the 14th amendment was to prevent racial discrimination in the law. The Supreme Court hammered this point again and again in their decision:

"To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State."

Clearly race does not apply in Hollingsworth v. Marry, so to take the ruling in Loving v Virginia would be to take the most liberal of interpretations. Instead of looking for government approval and a coin-toss on where SCOTUS might rule, perhaps same-sex marriage proponents would be better served by getting the government out of marriage altogether. After all, it was racism that brought the government into the arena in the first place and hoping to cure a problem created government with more government is surely the definition of insanity, to paraphrase Einstein.